ITO, Meerut V. Shri Hoshiyar Singh, Meerut

ITA 1625/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9943 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 11-08-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 20-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Keywords: TDS; Set aside
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI RAJPAL YADAV, JM AND SHRI R.C.SHARMA, A M ITA NO.1625/DEL/2009 ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER, WARD-1(3), MEERUT. VS. SHRI HOSIYAR SINGH, S/O SHRI NYADAR, VILLAGE KASERU, MAWANA ROAD, MEERUT. PAN NO.AYOPS8541C. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH GUPTA, SR.DR. RESPONDENT BY : NONE. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 6..2.2009 FOR THE AY 2004-05, IN THE MATTER OF ORDE R PASSED U/S 154 OF THE INCOME TAX ACT. 2. NOBODY APPEARED ON BEHALF OF THE ASSESSEE INSPIT E OF GIVING THE OPPORTUNITY, THE BENCH THEREFORE DECIDED TO DISPOSE THE APPEAL AFTER HEARING THE LEARNED DR AND CONSIDERING THE MATERIAL PLACED ON R ECORD. FACTS IN BRIEF ARE THAT ASSESSEE WAS IN RECEIPT OF COMPENSATION, ADDITIONAL COMPENSATION, SOLATIUM AND INTEREST IN RESPECT OF LAND ACQUIRED BY THE GOVERNM ENT. THERE WAS A REDUCTION OF TAX AT SOURCE AMOUNTING TO RS.2,03,086/-. THE ASSE SSEE FILED THE RETURN OF INCOME AT AN INCOME OF RS.5,000/-, WHEREIN ENTIRE TDS WAS CLAIMED AS A REFUND. THE AO ISSUED INTIMATION U/S 143(1)(A) WITHOUT ALLOWING AN Y REFUND, IT WAS ALSO STATED THAT REFUND WILL BE ISSUED AFTER COMPLETION OF PROCEEDIN GS U/S 154. IN THE ORDER PASSED U/S 154, THE AO HELD THAT TDS PROPORTIONATE TO THE INCOME OF THE OTHER YEARS ARE NOT ALLOWABLE AS THE CLAIM HAS NOT BEEN MADE WITHIN THE PRESCRIBED TIME LIMIT. BY REFERRING TO PROVISIONS OF SECTION 239(2)(C), THE A O HELD THAT CLAIM OF REFUND IS ITA-1625/D/2009 2 ALLOWABLE IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR THE AY 2004-05, UNDER CONSIDERATION. SINCE THE ASSESSEE HAS NOT OFFERED ANY INCOME FOR THE RELEVANT ASSESSMENT YEAR, THE CLAIM OF REFUND WAS DECLINED A S PER PROVISIONS OF SECTION 239(2)(C), 199 READ WITH SECTION 155(14) OF THE IT ACT. BY THE IMPUGNED ORDER, THE CIT(A) HELD THAT ACTION OF THE AO U/S 155 CANNO T BE UPHELD AND AO WAS GIVEN DIRECTION TO GIVE CREDIT FOR THE TDS AND ISSUE OF R EFUND. AGGRIEVED BY THE SAME, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 3. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW, THE ISSUE WITH REGARD TO TAXABILITY OF COMPENSATION, ENHANCED COMP ENSATION, SOLATIUM AND INTEREST THEREON HAS BEEN ELABORATELY DEALT WITH BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) 2009 TIOL-84- SC-IT, WHEREIN IT WAS HELD THAT ENHANCED COMPENSATION (INCLUDING INTEREST ) RECEIVED BY THE ASSESSEE IS LIABLE TO BE TAXED IN THE YEAR OF RECEIPT. BROAD P ROPOSITIONS WERE ALSO LAID DOWN WITH REGARD TO TAXABILITY OF SOLATIUM AND INTEREST ON COMPENSATION, ENHANCED COMPENSATION ETC. SUBJECT TO ADJUSTMENT U/S 155(16) LATER ON. NON-INCLUSION OF SUCH RECEIPT IN INCOME IS A MISTAKE APPARENT FROM R ECORD IN VIEW OF ABOVE DECISION OF HONBLE SUPREME COURT. THE AO HAS NOT CORRECTLY COMPUTED TAXABILITY OF SUCH COMPENSATION AND INTEREST THEREON. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND MATTER IS RESTORED BACK TO TH E FILE OF THE AO FOR DECIDING THE SAME AFRESH AS PER THE BROAD PROPOSITIONS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF GHANSHYAM,(HUF) (SUPRA). WE DIRECT ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST, 2009. SD/- SD/- (RAJPAL YADAV) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11.08.2009. VK. ITA-1625/D/2009 3 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR